McKellar v. Outfitters Kauai, LTD.

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-SEP-2025
07:52 AM
Dkt. 38 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CYNTHIA McKELLAR, Plaintiff-Appellant, v.
OUTFITTERS KAUAI, LTD., Defendant-Appellee,
and
DOE EMPLOYEE I; DOE COMPANY II; DOE COMPANY III;
DOE ENTITY IV; DOES V-X; AND ROE BUSINESS
ENTITIES XI-XX, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, and McCullen and Guidry, JJ.)

This appeal stems from a personal injury lawsuit
brought by Plaintiff-Appellant Cynthia McKellar (McKellar)
against Defendant-Appellee Outfitters Kauai, Ltd. (Outfitters).
McKellar appeals from the following order and judgment entered in
the Circuit Court of the Fifth Circuit1/ (Circuit Court): (1) the
February 2, 2023 "Order Granting . . . Outfitters['] Motion to
Dismiss the Complaint, or, in the Alternative, for Summary
Judgment, Filed May 24, 2022 [Dkt. 29]" (MSJ Order); and (2) the
October 23, 2023 Final Judgment (Judgment) entered in favor of
Outfitters.2/ McKellar also challenges the Circuit Court's

1/
The Honorable Kathleen N.A. Watanabe presided.
2/
McKellar filed her notice of appeal on March 2, 2023. We
subsequently remanded the case for entry of a final judgment. Under Hawai #i
Rules of Appellate Procedure Rule 4(a)(2), McKellar's premature appeal, filed
after entry of the MSJ Order but before entry of the Judgment, is "considered
as filed immediately after" the entry of the Judgment.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

April 10, 2023 "Findings of Fact, Conclusions of Law, and Order
Granting . . . Outfitters['] Motion to Dismiss the Complaint, or,
in the Alternative, for Summary Judgment, Filed May 24, 2022,
Dkt. 29".
McKellar allegedly slipped and fell while disembarking
from a boat operated by Outfitters, injuring her shoulder. She
sued Outfitters, asserting two negligence-based claims. The
Circuit Court granted Outfitters' motion to dismiss the complaint
or, in the alternative, for summary judgment (MSJ), concluding
"there were 'no genuine issues of material fact.'" More
specifically, the court concluded that: (1) "[i]t was
[McKellar's] own negligence that was the cause of her alleged
injury"; (2) "Outfitters clearly and expressly disclosed the
possible risks associated with participating in the tour via the
Release given to and signed by all patrons, including
[McKellar]"; (3) "[McKellar] expressly agreed to 'release,
indemnify, and hold harmless' Outfitters 'with respect to any and
all injury'"; and (4) "[McKellar] . . . failed to exercise
ordinary care by following simple instructions or even by
following the other, uninjured, patrons off the vessel."
On appeal, McKellar contends that the Circuit Court
erred: (1) "in considering a waiver pursuant to [Hawaii Revised
Statutes (HRS)] § 663-1.54" (quoted infra); (2) "in granting
summary judgment where a genuine issue of material fact exists by
statute" (emphasis omitted); (3) "in making several findings of
fact that were reserved to the jury"; and (4) "in finding that
[McKellar] assumed the risk of her injury . . . ." McKellar also
contends that "the Circuit Court abused its discretion in denying
[her] relief pursuant to Hawai#i Rules of Civil Procedure
[(HRCP)] Rule 56(f)."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
McKellar's contentions as follows, and vacate.
McKellar contends that the Circuit Court erred in
construing the release of liability (Release) she signed as a
waiver of Outfitters' liability for her injuries, where HRS

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

§ 663-1.54 expressly excludes a defendant's own negligence from
the scope of a valid waiver. McKellar further contends that in
applying HRS § 663-1.54, the Circuit Court improperly made
findings of fact that were reserved for the jury.
We review a grant of summary judgment de novo. Nozawa
v. Operating Engineers Local Union No. 3, 142 Hawai#i 331, 338,
418 P.3d 1187, 1194 (2018) (citing Adams v. CDM Media USA, Inc.,
135 Hawai#i 1, 12, 346 P.3d 70, 81 (2015)). The moving party has
the burden to introduce admissible evidence to establish the
material facts, show there is no genuine issue as to any of them,
and explain why it is entitled to a judgment as a matter of law.
Id. at 342, 418 P.3d at 1198 (citing and quoting French v. Haw.
Pizza Hut, Inc., 105 Hawai#i 462, 470, 99 P.3d 1046, 1054
(2004)). A fact is material if it would establish or refute an
element of a cause of action or defense. Id. (quoting Adams, 135
Hawai#i at 12, 346 P.3d at 81). We view the evidence in the
light most favorable to the non-moving party. Id. (quoting
Adams, 135 Hawai#i at 12, 346 P.3d at 81).
Outfitters based its MSJ on three arguments: (1)
McKellar executed a valid release of liability – namely, the
Release – by which she gave up her rights to hold Outfitters
liable for her injuries and expressly assumed the risk of injury;
(2) McKellar, knowing the risk, failed to exercise due care and
contributed to her own injury; and (3) public policy afforded
Outfitters a complete defense under the Release. Each of these
arguments was based on an affirmative defense to McKellar's
negligence claims, and each relied at least in part on the
validity of the Release and the alleged adequacy of its risk
disclosures. Outfitters thus had the burden of proving facts
essential to the asserted defenses. See U.S. Bank Nat'l Ass'n v.
Castro, 131 Hawai#i 28, 41, 313 P.3d 717, 730 (2013). The
Circuit Court appears to have adopted each of Outfitters'
arguments in granting the MSJ.
On appeal, Outfitters does not dispute that HRS § 663-
1.54 applies here, and does not directly address whether that
section precludes a waiver of Outfitters' alleged negligence.
Outfitters argues, however, that the determination of whether a

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

risk was inherent or not [under section 663-1.54] was a decision
to be made by the [Circuit Court,]" because McKellar allegedly
waived her right to a jury trial.
HRS § 663-1.54 (2016) provides:

Recreational activity liability. (a) Any person who
owns or operates a business providing recreational
activities to the public, such as, without limitation, scuba
or skin diving, sky diving, bicycle tours, and mountain
climbing, shall exercise reasonable care to ensure the
safety of patrons and the public, and shall be liable for
damages resulting from negligent acts or omissions of the
person which cause injury.
(b) Notwithstanding subsection (a), owners and
operators of recreational activities shall not be liable for
damages for injuries to a patron resulting from inherent
risks associated with the recreational activity if the
patron participating in the recreational activity
voluntarily signs a written release waiving the owner or
operator's liability for damages for injuries resulting from
the inherent risks. No waiver shall be valid unless:

(1) The owner or operator first provides full
disclosure of the inherent risks associated with
the recreational activity; and

(2) The owner or operator takes reasonable steps to
ensure that each patron is physically able to
participate in the activity and is given the
necessary instruction to participate in the
activity safely.

(c) The determination of whether a risk is inherent
or not is for the trier of fact. As used in this section an
"inherent risk":

(1) Is a danger that a reasonable person would
understand to be associated with the activity by
the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would
understand to exist despite the owner or
operator's exercise of reasonable care to
eliminate or minimize the danger, and is
generally beyond the control of the owner or
operator; and

(3) Does not result from the negligence, gross
negligence, or wanton act or omission of the
owner or operator.

(Emphases added.)
The plain language of section 663–1.54 expressly
precludes a waiver of the recreational owner or operator's
liability for negligence. Id.; see S. Stand. Comm. Rep. No.
1537, in 1997 Senate Journal, at 1476 ("[T]his measure is
necessary to more clearly define the liability of providers of

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

commercial recreational activities by statutorily validating
inherent risk waivers signed by the participants. Your Committee
further finds that these inherent risk waivers require providers
to disclose known risks to the participants, but these waivers do
not extend immunity to providers for damages resulting from
negligence." (emphasis added)); see also King v. CJM Country
Stables, 315 F. Supp. 2d 1061, 1065–66 (D. Haw. 2004) ("Section
663–1.54(a) explicitly precludes waiving liability for
negligence.").
Here, the Circuit Court concluded in COL 11 that
"[McKellar] expressly agreed to 'release, indemnify, and hold
harmless' Outfitters 'with respect to any and all injury[.]'" To
the extent the court construed the Release as a waiver of
Outfitters' liability for its alleged negligence, the court
erred.
The court further erred in relying on the Release in
granting summary judgment where a genuine issue of material fact
existed as to whether the risk of McKellar's slip-and-fall
incident was an "inherent" risk of the relevant recreational
activity. Section 663–1.54(c) expressly states that the
"determination whether a risk is inherent or not is for the trier
of fact." Contrary to Outfitters' strained argument, the Circuit
Court did not purport to conduct a trial and did not "bec[o]me
the trier of fact." The court quite clearly decided a motion for
summary judgment. In this context, Section 663–1.54(c) created a
genuine issue of material fact as to whether the risk at issue
was "inherent." See King, 315 F. Supp. 2d at 1067. This
statutorily-imposed genuine issue of fact precluded summary
judgment on the basis of the Release as a matter of law. Because
each of the bases for summary judgment was dependent at least in
part on the validity of the Release, the Circuit Court erred in
granting the MSJ.3/

3/
We further note that under HRS § 663-31, contributory negligence
does not bar recovery in a negligence action, as long as the plaintiff's
negligence is not greater than the negligence of the defendant. This
determination must be made in accordance with the procedure set forth in HRS
§ 663-31(b) and (c). That procedure was not followed here.

5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Given our conclusion, we need not reach McKellar's
remaining contentions. We note, however, that in granting the
MSJ, the Circuit Court made extensive findings of fact to support
its conclusions of law, some of which also state factual
findings. We emphasize that a circuit court deciding a motion
for summary judgment does not make findings of fact. If the
facts are controverted, summary judgment should be denied. See
HRCP Rule 56(c).
For the reason discussed above, the following are
vacated: (1) the February 2, 2023 "Order Granting Defendant
Outfitters Kauai, Ltd.'s Motion to Dismiss the Complaint, or, in
the Alternative, for Summary Judgment, Filed May 24, 2022 [Dkt.
29]"; (3) the April 10, 2023 "Findings of Fact, Conclusions of
Law, and Order Granting Defendant Outfitters Kauai, Ltd.'s Motion
to Dismiss the Complaint, or, in the Alternative, for Summary
Judgment, Filed May 24, 2022, Dkt. 29"; and (2) the October 23,
2023 Final Judgment. This case is remanded to the Circuit Court
for further proceedings consistent with this Summary Disposition
Order.

DATED: Honolulu, Hawai#i, September 9, 2025.

On the briefs:

Christopher D. Burk /s/ Clyde J. Wadsworth
(The Patriot Law Firm Corp.) Presiding Judge
for Plaintiff-Appellant.
Randall K. Schmitt /s/ Sonja M.P. McCullen
(McCorriston Miller Mukai Associate Judge
MacKinnon LLP)
for Defendant-Appellee.
/s/ Kimberly T. Guidry
Associate Judge

6

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-SEP-2025
07:52 AM
Dkt. 38 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CYNTHIA McKELLAR, Plaintiff-Appellant, v.
OUTFITTERS KAUAI, LTD., Defendant-Appellee,
and
DOE EMPLOYEE I; DOE COMPANY II; DOE COMPANY III;
DOE ENTITY IV; DOES V-X; AND ROE BUSINESS
ENTITIES XI-XX, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, and McCullen and Guidry, JJ.)

This appeal stems from a personal injury lawsuit
brought by Plaintiff-Appellant Cynthia McKellar (McKellar)
against Defendant-Appellee Outfitters Kauai, Ltd. (Outfitters).
McKellar appeals from the following order and judgment entered in
the Circuit Court of the Fifth Circuit1/ (Circuit Court): (1) the
February 2, 2023 "Order Granting . . . Outfitters['] Motion to
Dismiss the Complaint, or, in the Alternative, for Summary
Judgment, Filed May 24, 2022 [Dkt. 29]" (MSJ Order); and (2) the
October 23, 2023 Final Judgment (Judgment) entered in favor of
Outfitters.2/ McKellar also challenges the Circuit Court's

1/
The Honorable Kathleen N.A. Watanabe presided.
2/
McKellar filed her notice of appeal on March 2, 2023. We
subsequently remanded the case for entry of a final judgment. Under Hawai #i
Rules of Appellate Procedure Rule 4(a)(2), McKellar's premature appeal, filed
after entry of the MSJ Order but before entry of the Judgment, is "considered
as filed immediately after" the entry of the Judgment.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

April 10, 2023 "Findings of Fact, Conclusions of Law, and Order
Granting . . . Outfitters['] Motion to Dismiss the Complaint, or,
in the Alternative, for Summary Judgment, Filed May 24, 2022,
Dkt. 29".
McKellar allegedly slipped and fell while disembarking
from a boat operated by Outfitters, injuring her shoulder. She
sued Outfitters, asserting two negligence-based claims. The
Circuit Court granted Outfitters' motion to dismiss the complaint
or, in the alternative, for summary judgment (MSJ), concluding
"there were 'no genuine issues of material fact.'" More
specifically, the court concluded that: (1) "[i]t was
[McKellar's] own negligence that was the cause of her alleged
injury"; (2) "Outfitters clearly and expressly disclosed the
possible risks associated with participating in the tour via the
Release given to and signed by all patrons, including
[McKellar]"; (3) "[McKellar] expressly agreed to 'release,
indemnify, and hold harmless' Outfitters 'with respect to any and
all injury'"; and (4) "[McKellar] . . . failed to exercise
ordinary care by following simple instructions or even by
following the other, uninjured, patrons off the vessel."
On appeal, McKellar contends that the Circuit Court
erred: (1) "in considering a waiver pursuant to [Hawaii Revised
Statutes (HRS)] § 663-1.54" (quoted infra); (2) "in granting
summary judgment where a genuine issue of material fact exists by
statute" (emphasis omitted); (3) "in making several findings of
fact that were reserved to the jury"; and (4) "in finding that
[McKellar] assumed the risk of her injury . . . ." McKellar also
contends that "the Circuit Court abused its discretion in denying
[her] relief pursuant to Hawai#i Rules of Civil Procedure
[(HRCP)] Rule 56(f)."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
McKellar's contentions as follows, and vacate.
McKellar contends that the Circuit Court erred in
construing the release of liability (Release) she signed as a
waiver of Outfitters' liability for her injuries, where HRS

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

§ 663-1.54 expressly excludes a defendant's own negligence from
the scope of a valid waiver. McKellar further contends that in
applying HRS § 663-1.54, the Circuit Court improperly made
findings of fact that were reserved for the jury.
We review a grant of summary judgment de novo. Nozawa
v. Operating Engineers Local Union No. 3, 142 Hawai#i 331, 338,
418 P.3d 1187, 1194 (2018) (citing Adams v. CDM Media USA, Inc.,
135 Hawai#i 1, 12, 346 P.3d 70, 81 (2015)). The moving party has
the burden to introduce admissible evidence to establish the
material facts, show there is no genuine issue as to any of them,
and explain why it is entitled to a judgment as a matter of law.
Id. at 342, 418 P.3d at 1198 (citing and quoting French v. Haw.
Pizza Hut, Inc., 105 Hawai#i 462, 470, 99 P.3d 1046, 1054
(2004)). A fact is material if it would establish or refute an
element of a cause of action or defense. Id. (quoting Adams, 135
Hawai#i at 12, 346 P.3d at 81). We view the evidence in the
light most favorable to the non-moving party. Id. (quoting
Adams, 135 Hawai#i at 12, 346 P.3d at 81).
Outfitters based its MSJ on three arguments: (1)
McKellar executed a valid release of liability – namely, the
Release – by which she gave up her rights to hold Outfitters
liable for her injuries and expressly assumed the risk of injury;
(2) McKellar, knowing the risk, failed to exercise due care and
contributed to her own injury; and (3) public policy afforded
Outfitters a complete defense under the Release. Each of these
arguments was based on an affirmative defense to McKellar's
negligence claims, and each relied at least in part on the
validity of the Release and the alleged adequacy of its risk
disclosures. Outfitters thus had the burden of proving facts
essential to the asserted defenses. See U.S. Bank Nat'l Ass'n v.
Castro, 131 Hawai#i 28, 41, 313 P.3d 717, 730 (2013). The
Circuit Court appears to have adopted each of Outfitters'
arguments in granting the MSJ.
On appeal, Outfitters does not dispute that HRS § 663-
1.54 applies here, and does not directly address whether that
section precludes a waiver of Outfitters' alleged negligence.
Outfitters argues, however, that the determination of whether a

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

risk was inherent or not [under section 663-1.54] was a decision
to be made by the [Circuit Court,]" because McKellar allegedly
waived her right to a jury trial.
HRS § 663-1.54 (2016) provides:

Recreational activity liability. (a) Any person who
owns or operates a business providing recreational
activities to the public, such as, without limitation, scuba
or skin diving, sky diving, bicycle tours, and mountain
climbing, shall exercise reasonable care to ensure the
safety of patrons and the public, and shall be liable for
damages resulting from negligent acts or omissions of the
person which cause injury.
(b) Notwithstanding subsection (a), owners and
operators of recreational activities shall not be liable for
damages for injuries to a patron resulting from inherent
risks associated with the recreational activity if the
patron participating in the recreational activity
voluntarily signs a written release waiving the owner or
operator's liability for damages for injuries resulting from
the inherent risks. No waiver shall be valid unless:

(1) The owner or operator first provides full
disclosure of the inherent risks associated with
the recreational activity; and
(2) The owner or operator takes reasonable steps to
ensure that each patron is physically able to
participate in the activity and is given the
necessary instruction to participate in the
activity safely.
(c) The determination of whether a risk is inherent
or not is for the trier of fact. As used in this section an
"inherent risk":

(1) Is a danger that a reasonable person would
understand to be associated with the activity by
the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would
understand to exist despite the owner or
operator's exercise of reasonable care to
eliminate or minimize the danger, and is
generally beyond the control of the owner or
operator; and
(3) Does not result from the negligence, gross
negligence, or wanton act or omission of the
owner or operator.

(Emphases added.)
The plain language of section 663–1.54 expressly
precludes a waiver of the recreational owner or operator's
liability for negligence. Id.; see S. Stand. Comm. Rep. No.
1537, in 1997 Senate Journal, at 1476 ("[T]his measure is
necessary to more clearly define the liability of providers of

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

commercial recreational activities by statutorily validating
inherent risk waivers signed by the participants. Your Committee
further finds that these inherent risk waivers require providers
to disclose known risks to the participants, but these waivers do
not extend immunity to providers for damages resulting from
negligence." (emphasis added)); see also King v. CJM Country
Stables, 315 F. Supp. 2d 1061, 1065–66 (D. Haw. 2004) ("Section
663–1.54(a) explicitly precludes waiving liability for
negligence.").
Here, the Circuit Court concluded in COL 11 that
"[McKellar] expressly agreed to 'release, indemnify, and hold
harmless' Outfitters 'with respect to any and all injury[.]'" To
the extent the court construed the Release as a waiver of
Outfitters' liability for its alleged negligence, the court
erred.
The court further erred in relying on the Release in
granting summary judgment where a genuine issue of material fact
existed as to whether the risk of McKellar's slip-and-fall
incident was an "inherent" risk of the relevant recreational
activity. Section 663–1.54(c) expressly states that the
"determination whether a risk is inherent or not is for the trier
of fact." Contrary to Outfitters' strained argument, the Circuit
Court did not purport to conduct a trial and did not "bec[o]me
the trier of fact." The court quite clearly decided a motion for
summary judgment. In this context, Section 663–1.54(c) created a
genuine issue of material fact as to whether the risk at issue
was "inherent." See King, 315 F. Supp. 2d at 1067. This
statutorily-imposed genuine issue of fact precluded summary
judgment on the basis of the Release as a matter of law. Because
each of the bases for summary judgment was dependent at least in
part on the validity of the Release, the Circuit Court erred in
granting the MSJ.3/

3/
We further note that under HRS § 663-31, contributory negligence
does not bar recovery in a negligence action, as long as the plaintiff's
negligence is not greater than the negligence of the defendant. This
determination must be made in accordance with the procedure set forth in HRS
§ 663-31(b) and (c). That procedure was not followed here.

5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Given our conclusion, we need not reach McKellar's
remaining contentions. We note, however, that in granting the
MSJ, the Circuit Court made extensive findings of fact to support
its conclusions of law, some of which also state factual
findings. We emphasize that a circuit court deciding a motion
for summary judgment does not make findings of fact. If the
facts are controverted, summary judgment should be denied. See
HRCP Rule 56(c).
For the reason discussed above, the following are
vacated: (1) the February 2, 2023 "Order Granting Defendant
Outfitters Kauai, Ltd.'s Motion to Dismiss the Complaint, or, in
the Alternative, for Summary Judgment, Filed May 24, 2022 [Dkt.
29]"; (3) the April 10, 2023 "Findings of Fact, Conclusions of
Law, and Order Granting Defendant Outfitters Kauai, Ltd.'s Motion
to Dismiss the Complaint, or, in the Alternative, for Summary
Judgment, Filed May 24, 2022, Dkt. 29"; and (2) the October 23,
2023 Final Judgment. This case is remanded to the Circuit Court
for further proceedings consistent with this Summary Disposition
Order.

DATED: Honolulu, Hawai#i, September 9, 2025.

On the briefs:

Christopher D. Burk /s/ Clyde J. Wadsworth
(The Patriot Law Firm Corp.) Presiding Judge
for Plaintiff-Appellant.

Randall K. Schmitt /s/ Sonja M.P. McCullen
(McCorriston Miller Mukai Associate Judge
MacKinnon LLP)
for Defendant-Appellee.
/s/ Kimberly T. Guidry
Associate Judge

6